New York State Court of Claims

New York State Court of Claims

FERRUGIA v. THE STATE OF NEW YORK, #2002-013-513, Claim No. 91957


Claimant failed to prove that he was injured while performing additional work made necessary by chronic understaffing of porter positions at Southport Correctional Facility.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: JOSEPH F. ROMANI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 1, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


This claim[1] arose at Southport Correctional Facility (Southport) in September 1993 when Claimant was working as a porter, sometimes referred to as "cadre porter." At trial, Claimant described this position as one of the better-paying jobs in the facility and said that he had held the post for more than six months at the time of the accident (see, Exhibit 31). Claimant was assigned to A Block, which consisted of four tiers, with 21 cells each, located on three floors. Claimant was assigned to the first floor, where the more serious offenders were housed. Three porters were assigned to each floor, with a "floater" who would go between floors. Claimant testified that on many occasions fewer than the full complement of ten porters would be present, increasing the workload of those who did report for work. He testified that the correction officers were aware of this recurrent problem and kept saying that they were "working on it."
When meals were to be served to A Block, and the full complement of porters was present, the first floor would receive food from the kitchen on large trays (sometimes referred to as bread racks), and the meals would then be transferred onto smaller serving carts for distribution to the inmates. On the first floor correction officers, rather than porters, passed out the food. When the food for the upper floors arrived from the kitchen, that information would be relayed to those floors by correction officers, and porters assigned to the upper floors would come down to retrieve the food. The porters themselves passed out the meals on the upper floors .
A total of 60 to 70 meals were needed for each floor, and they were carried on six or seven trays or racks, depending on the size and weight of the food being served. In 1993 there were no dumbwaiters installed in this part of the facility, so the trays would have to be carried up the stairs. The feed-up carts themselves were not permitted in the stairways (Exhibit 7). The number of trays the inmates carried at one time would vary, again depending on the size and weight of the meal. Claimant testified that when fewer than the full complement of porters was present, meal times became protracted, the food became cold, prisoners complained, and correction officers became upset because of the "noise and disruption."[2]
Claimant stated that during the ten-day period prior to September 4, 1993, he had frequently had to act as porter on both his assigned floor and on the second floor. He stated that there were only three porters on duty for the entire cell block on September 4, a situation that had occurred frequently, particularly during the previous ten days. On the day in question, he and the other porters began serving the evening meal at approximately 4:30 or 5:00 p.m. After they finished the work on the first floor, the inmate porters had intended to take a break but were given direct and imperative orders to proceed to move the food to the second and third floors. He and one of the other porters were attempting to take a large number of trays up to the second floor, when the third porter came over to assist them. During this process, Claimant slipped, his weight shifted, and he wrenched his back. He stated that he was unable to lift anything after that but acknowledges that he was not immediately sent to the prison infirmary. Claimant emphasized that on the day in question, he and the other porters were yelled at and pressured to continue carrying the food up the stairs, even after making it clear to the officers that they were tired and needed to take a break.
On cross-examination, Claimant acknowledged that prior to this incident, he had complained of back problems on other occasions, but he stated that they had never been bad enough to require treatment. He also acknowledged that he had never filed a grievance relating to the porter shortage, nor had he ever asked for a transfer from this job. Claimant stated that he had never been given instructions on how to get the food racks up the stairs.
Also testifying at trial were a number of correction officers who had been assigned to A Block during this time period. Correction Officer Edmund Murphy, who was the facility Fire and Safety Officer at the time in question, testified on behalf of Claimant and confirmed that there was no dumbwaiter or elevator in this building in 1993. He agreed that the absence of such devices, together with the shortage of manpower, created a potentially dangerous, or at least time-consuming, situation. He added, however, that inmates had the right to say "no" if directed to perform a task they believed to be dangerous and, further, that the inmates were not hurried but allowed to work at their own pace.
Testifying for Defendant, Sergeant Terry Cleveland, who was in charge of A Block in September 1993, stated that he did not personally supervise the feed-up duties but, instead, left that to the correction officers. He was the person to whom any complaints would be directed, however, and he had no recollection of receiving any complaints about lack of adequate staffing of the porter positions. Although he recognized Claimant, he had no memory of his ever complaining about there being too few porters, nor did he recall any unusual complaints by the other inmates about their food being cold. If a complaint had been made, he stated, a formal response would have been given, and if the inmate disagreed, he would be free to file a grievance. Sergeant Cleveland stated that it was common practice in operating the block to request other inmate porters to fill in if the number of porters was reduced by more than 50 percent (i.e., if there were fewer than five porters in this cell block), and he could not recall a time when there were fewer than five porters on duty. On cross-examination, he acknowledged that getting food to the inmates was a priority job, because lack of food would cause disturbances and additional noise among the population, something the correction officers would want to avoid. Thus, the porters would be expected to deliver the food "in a reasonable time frame" and "without unnecessary delay," but there was no set schedule that they had to meet.
Correction Officer Michael Wells was assigned to the upper floors of A Block at the time in question. He, like Sergeant Cleveland, stated unequivocally that at no time did the cell block have as few as three porters, and he could not recall a time when they had less than six on duty. If there had been fewer than six, he personally would have called for more porters to be sent. He stated that it took the porters about an hour to feed up the entire block, including time to clean up after the meal. The stairway was mopped and cleaned each day and was kept in good condition. Officer Wells had no memory of any reports of injury on the stairway during the fall of 1993.
Correction Officer Mark Becker, the officer in charge of the first floor of A Block, agreed that there were never less than six porters on duty in the block and that the porters were given no fixed time in which they had to finish serving a meal. He had no recollection of any problem on September 4, 1993. On cross-examination, he acknowledged that if one of the upper floors had requested the assistance of one of his first floor porters, he would have sent them upstairs.
Correction Officer Daniel White was a relief officer on duty on the third floor on September 4, 1993 and testified that he was never informed of any injury to Claimant or other unusual occurrence on the afternoon or evening in question. Correction Officer John Kane had worked the 3:00 p.m. to 11:00 p.m. shift as console officer on A Block and, similarly had no recollection of any unusual event. He stated that he should have been aware of any injury, because injuries were reported to him so that he could notify the facility supervisor and the medical staff. He also could not recall any time when there were complaints about a shortage of porters and stated, as did other witnesses, that there were never fewer than six porters in the entire block. If there had been fewer than that number, he would have called for assistance from another block. Correction Officer George Dalia, who was assigned to the second and third floors, testified in a similar fashion, having no recollection of any reported injury on that evening and no record or recollection of complaints about a shortage of porters. Also testifying to the same effect was Correction Officer Frank Twardeski, who added that he could not recall a time when the first floor porters were directed to take food up to the higher floors. When the food arrived in the block, porters from the upper level were always sent down to collect the food.
Correction Officer Dennis McKernan worked on the block during the afternoon of September 4, at which time he fed the first-floor inmates and collected garbage. He recognized Claimant as someone who had worked for him and, upon questioning, stated that he assumed he was a good worker because he (McKernan) had no lasting bad impression of him. Although he did not train the porters, he was the employee who had the most contact with them, and he was aware that they were given instructions by more senior porters on how to lift and carry the trays. If a porter was injured, it would be reported to the floor officer on that floor, but he had no memory of any porter being injured when carrying trays or racks. The number of porters did not vary significantly, he stated.
Where the State, through its correctional institutions, directs an inmate to participate in a work program, it has a duty to provide a reasonably safe workplace with reasonably safe equipment and, in addition, to give adequate warnings and instructions for the safe operation of equipment and performance of the work (Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665; Martinez v State of New York, 225 AD2d 877; Kandrach v State of New York, 188 AD2d 910). On the other hand, the mere happening of an accident carries with it no presumption of negligence on the part of the State (Fitzgerald v State of New York, 28 Misc 2d 283; Richards v State of New York, 205 Misc 3) . Labor Law provisions relating to worker safety do not govern relationships and duties between the State and the inmate or patient workers in its institutions, although they may provide a standard of care applicable to the State in a common law action for negligence (D'Argenio v Village of Homer, 202 AD2d 883; Fitzgerald v State of New York, 28 Misc 2d 283, supra; Lee v State of New York, 187 Misc 268).
At issue here is whether the working conditions of the porters in A Block at Southport were unsafe because routinely, and in particular on the day in question, there were too few porters to safely perform the work required of them. Although Claimant's counsel argues that the State's failure to install a dumbwaiter in this building, thus requiring that all items be moved to the upper floors by way of the stairs, was negligent, there was no evidence presented to establish that a unreasonable number of injuries were caused by this failure. Moreover, Claimant does not assert that the condition of the stairs was unsafe or that any equipment was faulty, nor does he explain how the accident could have been prevented by additional training. His claim therefore rests squarely, and exclusively, on his contention that there was an insufficient number of porters to perform the work required in this block and that, consequently, those who attempted to accomplish all that had to be done were required to work beyond their ability and more rapidly than was safe, even when they were in need of rest.
I am prepared to accept, and Defendant's own witnesses appeared prepared to accept, that three porters could not safely perform the work that would normally be assigned to ten men, and that they could certainly not serve meals to three floors of inmates within the same time period as a full crew would be able to do. Claimant has failed, however, to establish by a preponderance of the credible evidence that only three porters were on duty on the day in question or, for that matter, on any other day. The testimony of the correction officers was consistent and credible, and established to my satisfaction that if ever the complement of porters fell below six, or at the most five, additional staff would be requested, and sent, from other parts of the prison. The officers were also unaware of any accidents involving the delivery of trays to the upper floors, although such an event would seem to be memorable, or of any accidents or complaints of injury involving Claimant.
In addition, the extensive documentary discovery conducted by Claimant failed to produce evidence to support his contentions. The log sheets from A Block show that, upon occasion, as many as five porters were called over from B Block (Exhibit 2, p. 172) and that earlier in the day on September 4, 1993, there were eight porters on duty (Exhibit 2, p. 194 [11:30 a.m. entry]). There is no entry on any of the log sheets for A-1, A-2, or A-3 on September 4, 1993 to indicate anything unusual relating to the number of porters present or any incident that occurred in connection with the evening feed up. While there is no dispute that Claimant was treated for back pain in September 1993, the first entry related to such treatment appears to be on September 6 (Exhibit 1, p. 468) and there is simply nothing to connect that report to events that occurred two days earlier.
Defendant's motion for dismissal made at the close of evidence on the ground that Claimant failed to prove any negligence on the part of the State is hereby granted, and the claim is dismissed.
All motions not heretofore ruled upon are now denied.

May 1, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]This claim was previously dismissed on the ground that Claimant's pro se notice of intention was defective because it failed to adequately state the nature of the claim (Motion No. M-52161, Cross-Motion No. CM-52275, filed Jan. 26, 1996, Hanifin, J.). The Third Department reversed, and the claim was restored (237 AD2d 858).
[2] All quotations are from the Judge's trial notes or the audiotape of the trial.